HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Judgment: 10 April 2003

Reasons: 15 May 2003

[2003] UKHL 23

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1. Television broadcasters must ensure, so far as they can, that their programmes contain nothing likely to be offensive to public feeling. This 'offensive material restriction', as it may be called, is a statutory obligation placed on the independent broadcasters by section 6(1)(a) of the Broadcasting Act 1990. The BBC is subject to a comparable, non-statutory obligation under paragraph 5.1(d) of its agreement with the Secretary of State for National Heritage. This appeal concerns the operation of the offensive material restriction in the context of a party election broadcast. It is common ground that nothing in the present case turns on the fact that the obligation on independent television companies is statutory in form, whereas the obligation on the BBC is contained in an agreement.

2. The factual and regulatory background to the case is set out fully in the speeches of my noble and learned friends Lord Hoffmann and Lord Walker of Gestingthorpe. I need not repeat it. Suffice for me to say, ProLife Alliance is a political party registered under the Political Parties, Elections and Referendums Act 2000. It campaigns for 'absolute respect for innocent human life from fertilisation until natural death.' Among its principal policies is the prohibition of abortion. In May 2001 ProLife Alliance fielded enough candidates for the June 2001 general election to entitle it to make one party election broadcast in Wales. The transmission was scheduled for a little under five minutes.

3. Early in May 2001 ProLife Alliance submitted a tape of its proposed broadcast to BBC, ITV, Channel 4 and Channel 5. The major part of the proposed programme was devoted to explaining the processes involved in different forms of abortion, with prolonged and graphic images of the product of suction abortion: aborted foetuses in a mangled and mutilated state, tiny limbs, a separated head, and the like. Unquestionably the pictures are deeply disturbing. Unquestionably many people would find them distressing, even harrowing. Representatives of each broadcaster refused to screen these pictures as part of the proposed broadcast. The broadcasters did not then, or at any stage, raise any objection regarding the proposed soundtrack. ProLife Alliance was not prevented from saying whatever it wished about abortion. The objection related solely to still and moving pictures of aborted foetuses.

4. On 22 May 2001 ProLife Alliance commenced judicial review proceedings against the BBC. At an expedited hearing, on 24 May Scott Baker J refused permission to proceed with the challenge. ProLife Alliance then submitted two further versions of the proposed broadcast to BBC, ITV and S4C. These are the broadcasters which split transmission of their services between the different parts of the United Kingdom. In the two revised versions the images of the foetuses were progressively more blurred. Neither was acceptable. On 2 June a fourth version was submitted and unanimously approved. This version replaced the offending pictures with a blank screen bearing the word 'censored'. The blank screen was accompanied by a sound track describing the images shown on the banned pictures. This version was broadcast in Wales on the evening of the same day. Five days later, on 7 June, the general election took place.

5. In January 2002 an appeal by ProLife Alliance was heard by the Court of Appeal, comprising Simon Brown, Laws and Jonathan Parker LJJ. The court granted permission to proceed with the judicial review challenge. The court treated the hearing in the Court of Appeal as the substantive hearing, and allowed the appeal: see [2002] 3 WLR 1080. The court made a declaration that the BBC's refusal to broadcast ProLife Alliance's party election broadcast was unlawful.

6. Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts. The courts, as independent and impartial bodies, are charged with a vital supervisory role. Under the Human Rights Act 1998 they must decide whether legislation, and the conduct of public authorities, are compatible with Convention rights and fundamental freedoms. Where there is incompatibility the courts must grant appropriate remedial relief.

7. In this country access to television by political parties remains very limited. Independent broadcasters are subject to a statutory prohibition against screening advertisements inserted by bodies whose objects are of a political nature. The BBC is prohibited from accepting payment in return for broadcasting. Party political broadcasts and party election broadcasts, transmitted free, are an exception. These 'party broadcasts' are the only occasions when political parties have access to television for programmes they themselves produce. In today's conditions, therefore, when television is such a powerful and intrusive medium of communication, party broadcasts are of considerable importance to political parties and to the democratic process.

8. The foundation of ProLife Alliance's case is article 10 of the European Convention on Human Rights. Article 10 does not entitle ProLife Alliance or anyone else to make free television broadcasts. Article 10 confers no such right. But that by no means exhausts the application of article 10 in this context. In this context the principle underlying article 10 requires that access to an important public medium of communication should not be refused on discriminatory, arbitrary or unreasonable grounds. Nor should access be granted subject to discriminatory, arbitrary or unreasonable conditions. A restriction on the content of a programme, produced by a political party to promote its stated aims, must be justified. Otherwise it will not be acceptable. This is especially so where, as here, the restriction operates by way of prior restraint. On its face prior restraint is seriously inimical to freedom of political communication.

9. That is the starting point in this case. In proceeding from there it is important to distinguish between two different questions. Once this distinction is kept in mind the outcome of this case is straightforward. The first question is whether the content of party broadcasts should be subject to the same restriction on offensive material as other programmes. The second question is whether, assuming they should, the broadcasters applied the right standard in the present case.

10. It is only the second of these two questions which is in issue before your Lordships. I express no view on whether, in the context of a party broadcast, a challenge to the lawfulness of the statutory offensive material restriction would succeed. For present purposes what matters is that before your Lordships' House ProLife Alliance accepted, no doubt for good reasons, that the offensive material restriction is not in itself an infringement of Pro-Life Alliance's convention right under article 10. The appeal proceeded on this footing. The only issue before the House is the second, narrower question. The question is this: should the court, in the exercise of its supervisory role, interfere with the broadcasters' decisions that the offensive material restriction precluded them from transmitting the programme proposed by ProLife Alliance?

11. On this ProLife Alliance's claim can be summarised as follows. A central part of its campaign is that if people only knew what abortion actually involves, and could see the reality for themselves, they would think again about the desirability of abortion. The disturbing nature of the pictures of mangled foetuses is a fundamental part of ProLife Alliance's message. Conveying the message without the visual images significantly diminishes the impact of the message. A producer of a party broadcast can be expected to exercise self-control over offensiveness, lest the broadcast alienate viewers whose interest and support the party is seeking. Here, it was common ground that the pictures in the proposed programme were not fictitious or reconstructed or 'sensationalised'. Nor was the use of these images 'gratuitous', in the sense of being unnecessary. The pictures were of real cases. In deciding that, even so, the pictures should not be transmitted the broadcasters must have misdirected themselves. They must have attached insufficient importance to the context that this was a party election broadcast. Any risk of distress could have been safeguarded by transmitting the programme after 10 pm with a suitably explicit warning at the beginning of the programme.

12. In my view, even on the basis of the most searching scrutiny, ProLife Alliance has not made out a case for interfering with the broadcasters' decisions. Clearly the context in which material is transmitted can play a major part in deciding whether transmission will breach the offensive material restriction. From time to time harrowing scenes are screened as part of news programmes or documentaries or other suitable programmes. Doubtless party broadcasts fall on the side of the somewhat indistinct line where a point being made may be expected to be illustrated with appropriate pictures, unpleasant as well as pleasant. For instance, a broadcast on behalf of a party opposed to war may be expected to illustrate the horrors of war with a picture of a gruesome war scene. The same may be true of a programme produced by those opposed to capital punishment. That could be expected to include a picture of an execution. But, even in such broadcasts, the extent to which distressing scenes may be shown must be strictly limited, so long as the broadcasters remain subject to their existing obligation not to transmit offensive material. Parliament has imposed this restriction on broadcasters and has chosen to apply this restriction as much to party broadcasts as to other programmes. The broadcasters' duty is to do their best to comply with this restriction, loose and imprecise though it may be and involving though it does a significantly subjective element of assessment.

13. The present case concerns a broadcast on behalf of a party opposed to abortion. Such a programme can be expected to be illustrated, to a strictly limited extent, by disturbing pictures of an abortion. But the ProLife Alliance tapes went much further. In its decision letter dated 17 May 2001 the BBC noted that some images of aborted foetuses could be acceptable depending on the context: 'what is unacceptable is the cumulative effect of several minutes primarily devoted to such images'. None of the broadcasters regarded the case as at the margin. Each regarded this as a 'clear case in which it would plainly be a breach of our obligations to transmit this broadcast.' In reaching their decisions the broadcasters stated they had 'taken into account the importance of the images to the political campaign of the ProLife Alliance.' In my view the broadcasters' application of the statutory criteria cannot be faulted. There is nothing, either in their reasoning or in their overall decisions, to suggest they applied an inappropriate standard when assessing whether transmission of the pictures in question would be likely to be offensive to public feeling.

14. I respectfully consider that in reaching the contrary conclusion the Court of Appeal fell into error in not observing the distinction between the two questions mentioned above, one of which was before the court and the other of which was not. Laws LJ said the 'real issue' the court had to decide was 'whether those considerations of taste and offensiveness, which moved the broadcasters, constituted a legal justification for the act of censorship involved in banning the claimant's proposed PEB'. The court's constitutional duty, he said, amounted to a duty 'to decide for itself whether this censorship was justified'. The letter of 17 May 2001 gave 'no recognition of the critical truth, the legal principle, that considerations of taste and decency cannot prevail over free speech by a political party at election time save wholly exceptionally': see [2002] 3 WLR 1080, 1090, 1097, 1099, paras 22, 37 and 44. Similarly, Simon Brown LJ said the critical issue was whether there was a pressing social need to ban this broadcast: p 1102, para 57.

15. The flaw in this broad approach is that it amounts to re-writing, in the context of party broadcasts, the content of the offensive material restriction imposed by Parliament on broadcasters. It means that an avowed challenge to the broadcasters' decisions became a challenge to the appropriateness of imposing the offensive material restriction on party broadcasts. As already stated, this was not an issue in these proceedings. Had it been, and had a declaration of incompatibility been sought, the appropriate government minister would need to have been given notice and, no doubt, joined as a party to the proceedings. Then the wide-ranging review of the authorities undertaken by the Court of Appeal would have been called for.

16. As it was, the Court of Appeal in effect carried out its own balancing exercise between the requirements of freedom of political speech and the protection of the public from being unduly distressed in their own homes. That was not a legitimate exercise for the courts in this case. Parliament has decided where the balance shall be held. The latter interest prevails over the former to the extent that the offensive material ban applies without distinction to all television programmes, including party broadcasts. In the absence of a successful claim that the offensive material restriction is not compatible with the Convention rights of ProLife Alliance, it is not for the courts to find that broadcasters acted unlawfully when they did no more than give effect to the statutory and other obligations binding on them. Even in such a case the effect of section 6(2) of the Human Rights Act 1998 would have to be considered. I would allow this appeal. The broadcasters' decisions to refuse to transmit the original version, and the first and second revised versions, of Prolife Alliance's proposed broadcasts were lawful.

LORD HOFFMANN

My Lords,

The issue

17. The ProLife Alliance is a registered political party. Many people will know that it is opposed to abortion, euthanasia, embryo research and human cloning. Few will know anything else about it. It is a single-issue party.

18. In the 2001 general election the Alliance put up enough candidates in Wales to qualify for a party election broadcast. It submitted a tape to the broadcasting authorities. The Court of Appeal ([2002] 3 WLR 1080) said that it consisted mainly of "prolonged and deeply disturbing images" of aborted foetuses: "tiny limbs, bloodied and dismembered, a separated head, their human shape and form plainly recognisable" (Simon Brown LJ at p. 1103, Laws LJ at p. 1086). The broadcasting authorities unanimously refused to screen the broadcast on the ground that it contained material which would be offensive to public feeling. But the Court of Appeal has held in judicial review proceedings against one of the broadcasters, the BBC, that it acted unlawfully in rejecting it. The BBC appeals to your Lordships' House.

Programme standards

19. My Lords, the BBC rejected the tape on the ground that it infringed the standards of taste and decency with which all the programmes which it transmitted were required by law to comply. Before I explain the legal status of these standards, I must say something about their origins and rationale. The high standards of moral and religious rectitude enforced by Sir John Reith as first Director-General of the BBC (1922-1938) made external regulation unnecessary but after the BBC lost its monopoly of television broadcasting in 1955 the question of standards became more controversial. The Committee on the Future of Broadcasting (1974-1977), chaired by Lord Annan, (Cmnd. 6753) rejected the view that questions of taste and decency should be a matter of editorial discretion. It said (at para. 16.3): "Public opinion cannot be totally disregarded in the pursuit of liberty".

20. The main reason for singling out television and, to a lesser extent, radio for the imposition of standards of taste and decency is the intimate relationship which these media establish between the broadcaster and the viewer or listener in his home. Television in particular makes the viewer feel a participant in the events it depicts and acquainted with the people (real or fictitious) whom he regularly sees. The visual image brings home the reality which lies behind words.

21. The power of the medium is the reason why television and radio broadcasts have been required to conform to standards of taste and decency which, in the case of any other medium, would nowadays be thought to be an unwarranted restriction on freedom of expression. The enforcement of such standards is a familiar feature of the cultural life of this country. And this fact has given rise to public expectations. The Broadcasting Standards Commission puts the point with great clarity in paragraph 2 of its Code on Standards:

"There is an implied contract between the viewer, the listener and the broadcaster about the terms of admission to the home. The most frequent reason for viewers or listeners finding a particular item offensive is that it flouts their expectation of that contract - expectations about what sort of material should be broadcast at a certain time of day, on a particular channel and within a certain type of programme, or indeed whether it should be broadcast at all."

22. A similar point about expectations was made by Stevens J. giving the opinion of the United States Supreme Court in Federal Communications Commission v Pacifica Foundation (1978) 438 US 726, 748 in a case about the use of obscene language on sound radio:

"the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder...Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offence by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow."

The legislative framework.

23. All television broadcasters except the BBC operate under licences granted by the Independent Television Commission ("ITC"). When the Communications Bill now before Parliament comes into force, they will be licensed by the Office of Communications ("OFCOM"). The BBC operates under a Royal Charter and its regulation is therefore extra-statutory. But the standards of taste and decency applicable by the BBC and the other broadcasters are exactly the same and no one in these proceedings has suggested that the different regulatory systems make any difference.

(a) The independent broadcasters.

24. Section 6(1)(a) of the Broadcasting Act 1990 imposes upon the ITC a duty to do all it can to secure that every service which it licenses complies with a requirement that-

"nothing is included in its programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling."

25. To give effect to this requirement, the ITC publishes a Programme Code (which is revised from time to time) and makes it a condition of every licence that the broadcaster must comply with the Code. Section 1 deals with, among other things, offence to good taste and decency.

(b) The BBC

26. The BBC's most recent Royal Charter, dated 1 May 1996, provides in clause 7(1)(b) that the Governors must satisfy themselves that all the activities of the Corporation are carried out in accordance with any agreement which may be made between the Corporation and the Secretary of State. The current agreement, dated 25 January 1996, provides in clause 5.1(d) that the Corporation shall do all it can to secure that all programmes which it broadcasts or transmits-

"do not include anything which offends against good taste or decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling."

27. To give effect to this requirement, the BBC publishes (and from time to time revises) Producers' Guidelines of which a section is entitled Taste and Decency.

(c) The Broadcasting Standards Commission

28. The Broadcasting Act 1996 set up the Broadcasting Standards Commission ("BSC"). It has a duty under section 108 to draw up a code giving guidance as to the portrayal of sex and violence and "standards of taste and decency for such programmes generally". The Code which it published in 1998 is still in force. It is the duty of each broadcasting or regulatory body (including the BBC), when drawing up any code relating to "standards and practice for programmes" to reflect the general effect of the BSC's code. The ITC Programme Code and the BBC Producers' Guidelines were revised to comply with this requirement.

29. The BSC also has a duty under section 110(2)(b) to consider and make findings on complaints of alleged failures on the part of any programme broadcast by the BBC or the independent companies) to "attain standards of taste and decency."

(d) The Communications Bill

30. The Communications Bill transfers to OFCOM the powers and duties of the BSC relating to programme standards. The proposed legislation on this subject goes into more detail than section 6(1)(a) of the 1990 Act. OFCOM is required by clause 309(1) to set such standards for the contents of programmes to be included in television and radio services as appears to them best calculated to secure "the standards objectives". These include

"(2)(f) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material;"

31. Clause 309(4) contains a list of matters to which OFCOM must have regard, so far as relevant, in setting standards. They are:

"(a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;

(b) the likely size and composition of the potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;

(c) the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of a programme's content can be brought to the attention of potential members of the audience;

(d) the likelihood of persons who are unaware of the nature of a programme's content being unintentionally exposed, by their own actions, to that content;

(e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section; and

(f) the desirability of maintaining the independence of editorial control over programme content."

(e) Audience research

32. Clause 309(2)(f) of the Communications Bill makes explicit reference to "generally accepted standards". This is the way in which the notion of standards of taste and decency has always been interpreted. It is therefore necessary for both regulators and broadcasters to keep in touch with their audiences to discover what is likely to give offence. The BSC has power under section 122 of the 1996 Act to commission research into matters connected with, among other things, standards of taste and decency and from time to time publishes reports of surveys into public attitudes and expectations. These functions will be taken over by OFCOM. In addition, the broadcasters undertake their own surveys and researches and they are of course in the front line for complaints by members of the public.

Political and election broadcasts

33. The first party election broadcasts on sound radio took place during the general election campaign of 1924 and the first televised broadcasts in 1951. The initiative in arranging the broadcasts came from the BBC. Section 36 of the 1990 Act now provides that licences for certain descriptions of broadcasters must include "conditions requiring the licence holder to include party political broadcasts in the licensed service" and to observe "such rules with respect to party political broadcasts as the [ITC] may determine". In the case of the BBC there is at present no formal obligation to offer party political broadcasts ("PPBs") or party election broadcasts ("PEBs") but in practice the rules of allocation are agreed by all broadcasters. Section 11 of the Political Parties, Elections and Referendums Act 2000 has added a requirement that the ITC, before making any rules under section 36, and the BBC, in determining its policy with respect to party political broadcasts, shall have regard to any views expressed by the Electoral Commission.